- (1.) Both the appeals have been preferred by the appellants against the judgment and order of conviction and sentence passed by learned Sessions Judge, Jamtara in Sessions Case No. 278 of 1993/244 of 2001. By this judgment and order of conviction dated 13th/17th September, 2002, the present appellants in both the appeals have been convicted for the offence under Section 302 to be read with Section 34 of the Indian Penal Code to undergo life imprisonment. Shiblal Murmu, who is appellant No. 1 in Criminal Appeal No. 640 of 2002 has expired as submitted by learned A.P.P. Hence the appeal is abated so far as the case of Shiblal Murmu is concerned. It is a case for prosecution that Fuchu Soren gave his statement before Umesh Kumar Singh, Sub-Inspector of Police of Jamtara Police Station, that on 26th of July, 1992 at about 5 AM when he was ploughing the field at that time Sushil Murmu (appellant of Criminal Appeal No. 699 of 2002) having tangi (sharp cutting Instrument) with him came with other co-accused who were carrying lathi with them. They all surrounded him, the accused Vishnu Murmu gave order to kill Fuchu Soren, thereupon accused Vishnu Murmu, Shiblal Murmu, Aashu Murmu assaulted with lathi and then Jadu Murmu gave a lathi blow and Sushil Murmu gave tangi blow on his head, thereafter Sushil Murmu and Vishnu Murmu both assaulted with stone. During these assaults, one Sri Rashik Hasda (who was never examined as prosecution witness, though cited as witness in the charge-sheet), who was of the same village, was passing through the place of occurrence. The accused persons assaulted upon him and he fled away therefrom. In the meanwhile, mother of Fuchu Soren-Barki Murmu (P.W. 2) came at the field and saw the occurrence and started raising alarm. Due to severe injuries, he became unconscious and he was brought to Jamtara Hospital. Fardbeyan of Fuchu Soren was recorded on 26th July, 1992 at 11.45 hours. F.I.R. was lodged on 27th of July, 1992 and it has reached to the concerned Court on 28th of July, 1992. Fuchu Soren, who has given fardbeyan on 26th of July, 1992 at 11.45 hours, has expired on 28th of July, 1992. Thereafter the police carried out investigation and recorded the statements of several witnesses and filed charge-sheet and the case was committed to the Sessions Court as Sessions Case No. 278 of 1993/244 of 2001 and upon depositions of prosecution witnesses from P.W. 1 to P.W. 6, the learned Trial Court has convicted these appellants for the offence of committing murder of Fuchu Soren for life imprisonment. Against this judgment and order of conviction and sentence, the present appeals have been preferred by the appellants.
(2.) We have heard counsel for both the sides and they have submitted that P.W. 2 and P.W. 6 are not an eye witnesses at all as they have reached the scene of occurrence later on, after the incident was over. This aspect of the matter has been stated by the P.W. 2 in her deposition at paragraph No. 14. P.W. 2 has further stated that when she had reached the place of occurrence there was no one else thus, she excludes the presence of P.W. 6. It is also submitted by counsel for the appellants that P.W. 6 in his cross-examination in paragraph Nos. 13 and 14 has stated that he reached the scene of offence after the occurrence was over. Moreover, there is no statement made by P.W. 6 before investigating officer, thus, without Sec. 161 statement, P.W. 6 has given his deposition before the Court. Statements of P.W. 6 recorded in paragraph No. 13 has been controverted by the prosecution without declaring P.W. 6 as hostile witness. No investigating officer has been examined in this case, thus, neither P.W. 2 nor P.W. 6 are eye witnesses. P.W. 6 has given statement for the first time in the Court. It is also submitted by counsel for the appellants that there is gross delay in recording the F.I.R. after recording fardbeyan of the deceased and there is also gross delay in sending the F.I.R. to the concerned Additional Chief Judicial Magistrate, Jamtara. The incident has taken place on 26th of July, 1992 at about 5 AM, fardbeyan/statement of Fuchu Soren was recorded on the same day at about 11.45 AM, First Information Report was lodged on 27th July, 1.992 and the same was reached to the Court of the Additional Chief Judicial Magistrate, Jamtara on 28th July, 1992. It is also submitted by the counsel for the appellants that no plausible explanation has been given by the Investigating Officer for delay in recording the First Information Report and delay in transmitting the First Information Report to the concerned Judicial Magistrate.
(3.) It is further submitted by counsel for the appellants that fardbeyan cannot be treated as dying declaration because fardbeyan is not proved at all. Neither police officer, who has recorded the statement, nor the doctor (who was present in Jamtara Hospital when Fuchu Soren was admitted) has been examined in this case. Mainly for the reason that in the fardbeyan Fuchu Soren has stated that he became unconscious after the assault. Similarly, P.W. 2 has also stated in paragraph Nos. 6 and 7 that when her son Fuchu Soren was brought Jo the Hospital at Jamtara, he was unconscious. P.W. 2 also stated in paragraph No. 7 on her deposition that the statement of Fuchu Soren was recorded on the very next day. The statement of Fuchu Soren recorded on next day i.e. on 27th July, 1992, was not brought on record at all. Thus nobody knows when Fuchu Soren was conscious for giving his statement before the police. Counsel for the appellants has relied upon the decisions rendered by the Supreme Court in the case of Mukhtiar Ahmed Ansari vs. State (NCT of Delhi), 2005 5 SCC 258, in the case of Raja Ram vs. State of Rajasthan, 2005 5 SCC 272 and in the case of Shivlal and Another vs. State of Chhattisgarh, 2011 9 SCC 561. It is submitted by the counsel for the appellants that this aspect of the matter has not been appreciated by the learned trial court that neither P.W. 2 nor P.W. 6 are the eye witnesses. There is delay in recording the First Information Report and fardbeyan cannot be treated as a dying declaration. Non-examination of Investigating Officer is fatal to the case of prosecution looking to the deposition of paragraph Nos. 6 and 7 of P.W. 2 and looking to paragraph Nos. 13 and 14 of P.W. 6 and therefore the judgment and conviction of sentence passed by Sessions Judge, Jamtara in Sessions Case No. 278 of 1993/244 of 2001 deserves to be quashed and set aside. It is submitted by counsel for the appellants that accused Jadu Murmu and Aashu Murmu have already been granted bail by suspending the sentence awarded by the trial Court, whereas appellant Sushil Murmu has remained in judicial custody since 2003 and, thus, he remained in jail for approximately eleven years and four months.;